U.S. v. McCall

• Decision Date: 17 August 1984
• Docket Number: No. 83-5041,83-5041
• Citation: 740 F.2d 1331
• Parties: UNITED STATES of America, Appellee, v. Robert P. McCALL, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1331

740 F.2d 1331

UNITED STATES of America, Appellee, v. Robert P. McCALL, Appellant.

No. 83-5041.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 7, 1983.

Decided Aug. 17, 1984.

Kenneth E. Labowitz, Alexandria, Va. (Weight & Chamowitz, Alexandria, Va., on brief), for appellant.

Thomas M. Buchanan, Asst. U.S. Atty., Alexandria, Va. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellee.

Before WIDENER, MURNAGHAN and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

Robert P. McCall appeals from his conviction for armed robbery committed within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. 2111. He was convicted on January 17, 1983, after a non-jury trial in the district court, and sentenced to a single prison term of five years.

McCall raises two principal challenges to the trial proceedings: that evidence used against him was obtained in violation of the fourth amendment by an invalid search warrant and that the affidavit of an unavailable witness was admitted as evidence in violation of his sixth amendment right of confrontation and the Federal Rules of Evidence. Although we find no merit to McCall's fourth amendment claim, we reverse and remand for a new trial because the admission of the affidavit and supporting hearsay testimony was erroneous. For reasons set forth in the separate opinion of Judge Widener, in which Judge Murnaghan concurs, a majority of this panel holds that the affidavit was hearsay under Federal Rule of Evidence 802 and not admissible as an exception under Rule 803(24) or Rule 804(b)(5). The majority concludes that, under the doctrine of Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring), it is not necessary to reach the sixth amendment question. I agree with my colleagues that the affidavit was inadmissible hearsay but differ from them in that I believe the sixth amendment question should be considered. Parts I and II of this opinion represent the unanimous views of the panel members, while Part III reflects my views only.

I. FACTS

On July 6, 1980, Robert Neal, an officer of the Federal Protective Service (FPS), the police agency of the General Services Administration of the United States government, was robbed at gunpoint of eighty-nine dollars and his government-issue service revolver while on duty at the Pentagon. The robber fled, Neal telephoned for assistance, and Officer Jones, who was an FPS officer on roving motor patrol that evening, responded immediately to his call to the Pentagon Control Center. Neal, in reporting the robbery, described the suspect as a 5' 10" black man wearing black trousers, a black sport coat, and a trash bag over his head. Jones, undertaking an immediate search for the robber, ran into McCall, who was also an FPS officer on roving patrol. Jones and McCall then searched the Pentagon grounds looking generally in the area where the robber reportedly had escaped. Their search was unsuccessful.

About an hour and a half after the robbery, Criminal Investigator Leonard Hernandez, a detective with the FPS, interviewed Neal. In his sworn statement to Hernandez Neal stated, "Honest, I think I have seen that guy somewhere before. I don't know if it was an FPO or someone who works at the motor pool ... The guy who I think robbed me that I said I think works at the motor pool drives a Cadillac and is brown-skinned." Neal also stated that he thought he would recognize the assailant if he saw him again. Neal knew at the time of his statement that McCall was an FPS officer who drove a Camaro rather than a Cadillac. Later on the morning of the robbery, McCall helped Neal fill out an official report of the incident.

The government made little official progress toward apprehending the robber until sometime in the spring of 1982, over two years after the crime was committed. It was then that Arthur McGriff, an FPS officer, drove McCall home to his Suitland, Maryland apartment; during the drive McCall reportedly confessed to him that he had committed the July, 1980 Neal robbery. Later, apparently to convince McGriff of his story, McCall retrieved Neal's stolen service revolver from a bedroom dresser drawer and displayed it to McGriff. He also pointed out a special Sony television set that he claimed to have stolen from the Pentagon.

McGriff, though he was a police officer, did not act on McCall's confession until some five to six months later. In October, 1982, however, he reported the details of McCall's revelation to Detective Hernandez, who was in charge of the Neal robbery investigation. Hernandez took no action until December, when he apparently furnished the information to the FBI. The FBI later sought a warrant to search McCall's apartment for the stolen service revolver and the special Sony television. Agent Kolbicka, an FBI special agent, appeared before the magistrate on December 2, 1982. Kolbicka swore that a robbery had occurred in July, 1980, that McCall had confessed his involvement in the robbery to McGriff in the spring of 1982 and had showed McGriff a service revolver that resembled the weapon stolen in the robbery as well as a special Sony television set that had been stolen from the Pentagon, that McCall had been on duty the night of the incident, and that McCall was about the same height as the man who reportedly had robbed Neal. The magistrate issued a warrant to search McCall's apartment for the revolver and the television set. The warrant identified McCall's then-current residence as Hillcrest Heights, Maryland, rather than the Suitland, Maryland apartment where McGriff had seen the revolver because the suspect had moved in the intervening period. Three FBI agents, including Kolbicka, accompanied by FPS detective Hernandez, searched McCall's Hillcrest Heights apartment and found the government service revolver that had been stolen from Neal hidden inside a velveteen pouch in a bedroom dresser drawer. Although the officers also found a Sony television set in the apartment, they could not confirm that the set had been stolen and it was not seized.

McCall was indicted on December 6, 1982, for the armed robbery of Neal. McCall's motion to suppress the revolver seized in the search of his apartment was denied. He waived his right to a jury trial and the case was tried before the district court on January 17, 1983.

Officer Neal, the victim of the July, 1980, robbery, died of cancer three weeks after McCall was indicted and about two and a half weeks before the trial date. Neal had not testified before the grand jury, nor had the government taken his deposition. The government, at trial, offered Neal's affidavit, taken by Detective Hernandez the day the robbery occurred. The affidavit was admitted over defense counsel's objection that it was hearsay not admissible under any exception under the Federal Rules of Evidence and that it violated McCall's rights under the confrontation clause of the sixth amendment.

Not only was the deceased Neal's affidavit admitted as the testimony of an unavailable witness, but Detective Hernandez testified concerning the circumstances in which the affidavit was given. Hernandez claimed that, despite an indication in the affidavit to the contrary, Neal had been adamant that the robber was an FPS officer. Hernandez testified that Neal "specifically informed me that he thought it was another FPO." According to Hernandez, Neal insisted that this information be left out of the affidavit because "[h]e didn't want to get anybody in trouble."

Arthur McGriff, to whom McCall had confessed in the spring of 1982, also testified. He explained that McCall had admitted his responsibility for the robbery and had shown him a revolver and an allegedly stolen television set. The revolver that FBI agents had seized in the December search of McCall's Hillcrest Heights apartment was admitted over defense counsel's renewed motion to suppress.

II. THE FOURTH AMENDMENT CLAIM

McCall first contends that the district court erred in refusing to suppress the revolver found in McCall's apartment as the fruits of an illegal search violative of the fourth amendment. Specifically, McCall argues, the information provided to the magistrate was too stale to furnish probable cause to believe that evidence of criminal activity then existed at the Hillcrest Heights premises named in the warrant. We disagree. He contends moreover that probable cause never existed in the first place with respect to the Hillcrest Heights apartment. McGriff had seen evidence of the robbery only at the Suitland apartment, never at the Hillcrest Heights apartment named in the warrant.

We first consider the staleness argument. The fourth amendment bars search warrants issued on less than probable cause, and there is no question that time is a crucial element of probable cause. A valid search warrant may issue only upon allegations of "facts so closely related to the time of the issue of the warrant as to justify a finding of probable cause at that time. Whether the proof meets this test must be determined by the circumstances of each case." Sgro v. United States, 287 U.S. 206, 210-11, 53 S.Ct. 138, 140-41, 77 L.Ed. 260 (1932). See also, e.g., United States v. Watson, 423 U.S. 411, 449 n. 14, 96 S.Ct. 820, 840 n. 14, 46 L.Ed.2d 598 (1976) (Marshall, J., dissenting); United States v. Freeman, 685 F.2d 942, 951-52 (5th Cir.1982); United States v. Beltempo, 675 F.2d 472, 476-79 (2d Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982); United States v. Button, 653 F.2d 319, 324-25 (8th Cir.1981). Consequently, evidence seized pursuant to a warrant supported by "stale" probable cause is not admissible in a criminal trial to establish the defendant's guilt.

Cases in which staleness becomes an issue arise in two different contexts. First, the facts alleged in the warrant may have been sufficient to establish probable cause when...